i t supreme court of the united states · mosaic - (301) 927-3800 - cheverly, md mary c. wickham cy...

49261_Ltrhd.indd 1 6/11/08 12:44:09 AM

No. 16-1466

In The

Supreme Court of the United States

Mark Janus,Petitioner,

v.

aMerIcan FederaTIon oF sTaTe, counTy, and MunIcIpal eMployees, councIl 31, et al.,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Seventh Circuit

BRIEF OF LOS ANGELES COUNTY’S DEPARTMENT OF HEALTH SERVICES, NYC

HEALTH + HOSPITALS, AND SERVICE EMPLOYEES INTERNATIONAL UNION AS

AMICI CURIAE SUPPORTING RESPONDENTS

Mosaic - (301) 927-3800 - Cheverly, MD

Mary c. WIckhaM County Counsel counTy oF los angeles oFFIce oF The counTy counsel 648 Kenneth Hahn Hall of Administration 500 W. Temple St. Los Angeles, CA 90012

nIcole g. Berner Counsel of Record servIce eMployees InTernaTIonal unIon 1800 Mass. Ave., N.W. Washington, D.C. 20036 (202) 730-7383 [email protected]

[Additional Counsel on Inside Cover]

salvaTore J. russo Senior Vice President General Counsel nyc healTh + hospITals 125 Worth St. New York, NY 10013

January 19, 2018

danIel rosenThal JaMes & hoFFMan, p.c. 1130 Conn. Ave., N.W., Ste. 950 Washington, D.C. 20036

WalTer kaMIaT 7305 Alaska Ave., N.W. Washington, D.C. 20012

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INTERESTS OF AMICI CURIAE .................... 1

INTRODUCTION AND SUMMARY OF ARGUMENT ...................................................... 2

ARGUMENT ...................................................... 5

I. Public Employers in Pro-Union Environments Must Have Discretion to Adopt Policies That Make Collective Bargaining Productive. ........ 5

A. Public Employers Have Significant Discretion under the First Amendment to Manage Their Employees’ Speech. .......................... 5

B. Unions Can Help Employers Improve Productivity, Efficiency, and Quality. ........................................ 7

1. Many employers invest in improved labor relations to achieve productivity and efficiency gains. ............................. 8

2. Unions can help employers improve labor relations and achieve productivity and efficiency gains. ............................. 12

C. Many Public Employers Operate in Pro-Union Environments Where Strategies Aimed at Channeling Collective-Bargaining Institutions into Productive Relationships Make Sense......................................... 19

TABLE OF CONTENTSPage

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II. Many Reasonable Public Employers Have Followed Private-Sector Models by Seeking to Partner with Their Employees’ Unions, and Fair Share Fees Are Critical to the Success of Their Partnerships. ................................. 22

A. Fair Share Fees Foster Trust Between Labor and Management and Among Co-Workers. ................... 23

B. Fair Share Fees Provide the Time and Resources Needed for Productive Cooperation between Labor and Management. ................... 27

C. Fair Share Fees Give Unions the Strength They Need To Vouch For Cooperative Work. ............................. 31

III. Amici’s Cooperative Work Shows How Collective Bargaining Relationships Supported by Fair Share Fees Can Benefit Employers and Consumers. .............................................. 33

CONCLUSION ................................................... 39

TABLE OF CONTENTS—Continued

Page

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TABLE OF AUTHORITIES

PageCases

Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977) ....................................... 5, 6, 38

Bd. of Cnty. Comm’rs v. Umbehr, 518 U.S. 668 (1996) ....................................... 6

Branch v. City of Myrtle Beach, 532 S.E.2d 289 (2000) ................................... 19

Connick v. Myers, 461 U.S. 138 (1983) .................................. 2, 5, 6, 22

Garcetti v. Ceballos, 547 U.S. 410 (2006) ....................................... 2, 5

Harris v. Quinn, 134 S. Ct. 2618 (2014) ................................... 6, 7

Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991) ....................................... 5

Rankin v. McPherson, 483 U.S. 378 (1987) ....................................... 6

Waters v. Churchill, 511 U.S. 661 (1994) ....................................... 2, 5

statutes

Ill. Comp. Stat. 315/2 (1983) ............................ 6

Ill. Comp. Stat. 315/6(e) (1983) ....................... 5

Other authOrities

Adrienne E. Eaton & Paula B. Voos, Unions and Contemporary Innovations in Work Organization, Compensation, and

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Employee Participation, in Unions and Economic Competitiveness (Lawrence Mishel & Paula B. Voos eds., 1992) ........... 15, 16

Alexander H. Heron, Collective Bargaining in Action in Collective Bargaining Contracts (1941) ........................................... 18

Am. Coll. of Healthcare Execs. & Lucien Leape Inst., Leading a Culture of Safety: A Blueprint for Success (2017) .................. 31

Ariel C. Avgar et al., Labor-Management Partnership and Employee Voice: Evidence from the Healthcare Setting, 55 Indus. Rel. 576 (2016) ................... 11, 23, 31, 32

Arindrajit Dube et al., Nurse Unions & Patient Outcomes, 69 ILR Rev. 803 (2016) ............................................................. 15

Br. of New York City Mun. Labor Comm., Friedrichs v. Cal. Teachers Ass’n, 578 U.S. __ (No. 14-915) (2016) .......................... 21

Br. for the States of New York et al., Friedrichs v. Cal. Teachers Ass’n, 578 U.S. __ (No. 14-915) (2016) ................... 21, 22

Brian Yoshio Laing MD MPH et al., A Quasi-Experimental Evaluation of Performance Improvement Teams in the Safety-Net: A Labor-Management Partnership Model for Engaging Frontline Staff, J. Pub. Health Mgmt. & Prac. (July-Aug. 2016) ...... 35, 36

TABLE OF AUTHORITIES—Continued

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Bureau of Labor Statistics, Union Affiliation of Employed Wage and Salary Workers by State, http://www.bls.gov/news.release/ union2.t05.htm .............................................. 19, 20

Daniel Marschall & Ellen Scully-Russ, Joint Union-Management Workforce Development Model, in Transforming the U.S. Workforce Development System (David Feingold et al. eds., 2010) .......... 9, 10, 28

Daniel Nelson, The Company Union Movement 1900-1937: A Reexamination, 56 Bus. Hist. Rev. 335 (1982) ....................... 18

Dianne S. Schwager, Foreword to Nat’l Acads. of Sci., Eng’g & Med., Transit Coop. Research Program, 2 Labor- Management Partnerships for Public Transportation (2015) ................................. 9, 11

Dorothea De Schweinitz, Labor and Management in a Common Enterprise (1949) ............................................................. 10

Ebenezer Oni MD MPH, A Resident Led Multidisciplinary Approach to Improve Continuity of Care and Readmission Rates: A Quality Improvement Project (June 9, 2017), http://www.cirseiu.org/ wp-content/uploads/2017/12/TOC-slides_ AAMC-Presentation_Chicago.pdf ............... 30

Eileen Appelbaum & Larry W. Hunter, Union Participation in Strategic Decisions of Corporations, in Emerging


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Labor Market Institutions for the Twenty-First Century (Richard B. Freeman et al. eds, 2004) ............................. 23

Elbridge S. Puckett, Productivity Achievements—A Measure of Success, in The Scanlon Plan: A Frontier in Labor-Management Cooperation (Frederick G. Lesieur ed., 1958) ................. 33

Email from Alyssa Cundari Roelans, Fl. Area Dir., Comm. of Interns & Residents (Nov. 30, 2017) ......................................... 25, 29, 30

Email from Ralph DeRosa, Gen. Counsel, Comm. of Interns & Residents (Dec. 6, 2017) ................................................ 36

Ernst Fehr & Simon Gächter, Cooperation and Punishment in Public Goods Experiments, 90 Am. Econ. Rev. 980 (2000) ............................................................. 27

Herman Aguinis et al., Using Organizational Science Research to Address U.S. Federal Agencies’ Management & Labor Needs, 2 Behav. Sci. & Pol’y 66 (2016) ....................... 8, 11

Improving Care, Lowering Costs, SEIU (2015), https://action.seiu.org/page/-/ HospitalQuality.pdf ....................................... 35

Interview with Nicole Moore, Director, Care Improvement Teams, L.A. Cnty. Health Agency, in L.A. Cal. (Oct. 30, 2017) ............ 35, 36


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Interview with Patricia Castillo, L.A. Cnty. Reg’l Health Dir., SEIU 721, in L.A. Cal. (Sept. 10, 2015) ............................................. 35

Irving Bernstein, The Lean Years (1969) ....... 32

Jeff Jones & Lydia Saad, Gallup Poll Social Series: Work & Educ. (Aug. 2–6, 2017), http://news.gallup.com/poll/217331/ labor-union-approval-best-2003.aspx ......... 20

Jody Hoffer Gittell, High Performance Healthcare: Using the Power of Relationships to Achieve Quality, Efficiency and Resilience (2009) .......... 10, 11, 26

Jody Hoffer Gittell, The Southwest Airlines Way: Using the Power of Relationships to Achieve High Performance (2003) ... 11, 32, 33

Labor-Management Partnership Fact Sheet, Labor Management Partnership, https:// www.lmpartnership.org/sites/default/ files/lmp_factsheet_6-17.pdf (June 2017) ... 13

Labor Management Transformation Council Stronger Together!, LMTC News, Nov. 21, 2017, available at http://img. seiu.org/docs/20171121-LMTCNews.pdf .... 34, 35

Laura Chenven & Danielle Copeland, Front- Line Worker Engagement: Greening Health Care, Improving Worker and Patient Health, and Building Better Jobs, 23 New Solutions 327 (Jan. 2013) ............... 34


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Lloyd G. Reynolds, Labor Economics and Labor Relations (8th ed. 1982) ................ passim

Lucian Leape Inst., Through the Eyes of the Workforce: Creating Joy, Meaning, and Safer Healthcare (2013) ......................... 11, 26, 31

Maimonides Med. Ctr. et al., Strategic Alliance Report 2007: Creating Competitive Advantage in a Changing Healthcare Environment Through Worker Participation (2007), available at https:// www.ilr.cornell.edu/sites/ilr.cornell.edu/ files/Maimonides%20Report.pdf ................. 29

Mancur Olson, The Logic of Collective Action (1965) ................................................ 25, 27

Mark Barenberg, The Political Economy of the Wagner Act: Power, Symbol, and Workplace Cooperation, 106 Harv. L. Rev. 1379 (1993) .................................................... 17

Maryellen R. Kelley & Bennett Harrison, Unions, Technology, and Labor- Management Cooperation, in Unions and Economic Competitiveness (Lawrence Mishel & Paula B. Voos eds., 1992) ............ 14

Mei Kong RN et al., An Assessment of Housestaff Experience of Safety Culture: What the Residents Revealed, CIR SEIU, http://www.cirseiu.org/wp-content/uploads/2018/01/NPSF-poster-1024x680.jpg (last visited Jan. 15, 2018) ........................... 37


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Menachem Gold MD et al., Improving Patient Wait Time Satisfaction in Radiology, Doctors Council, http://www.doctorscouncil.org/wp-content/uploads/ 2018/01/FBCC-Radiology-Project.pdf (last visited Jan. 15, 2018) ........................... 38

Michael Ash & Jean Ann Seago, The Effect of Registered Nurses’ Unions on Heart- Attack Mortality, 57 Indus. & Lab. Relations Rev. 422 (2004) ............................ 14, 20

Mitch Katz MD, A Message from the Director, LMTC News, Nov. 21, 2017, available at http://img.seiu.org/docs/ 20171121-LMTCNews.pdf ............................ 34, 35

Movant Employees’ Br. in Support of Mot. to Intervene, Rauner v. AFSCME Council 31, No. 15-1235 (N.D. Ill. Mar. 23, 2015), ECF No. 92-5 ................................................. 5

Nat’l Acads. of Sci., Eng’g & Med., Transit Coop. Research Program, 2 Labor- Management Partnerships for Public Transportation (2015), available at https://www.nap.edu/catalog/23431/labor-management-partnerships-for-public-transportation-volume-2-final-report ...... passim

Nat’l Bur. of Econ. Affairs, Inc., Collective Bargaining Contracts (1941) ..................... 18

Neil W. Chamberlain & Donald E. Cullen, The Labor Sector (2d ed. 1971) ................... 24


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Nicole Moore, LA DHS, The Care Improvement Teams Program Binder: How to Start a Partnership-Based Improvement Program (Feb. 1, 2016), http://img.seiu.org/docs/HowToStartA Partnership-BasedImprovement Program.pdf .................................................. 28

NYC H+H & Doctors Council, Collaboration Councils Agreement, Doctors Council, http://www.doctorscouncil.org/wp- content/uploads/2015/10/HHC-Doctors- Council-SEIU-Collaboration-Councils- Contract-Language.pdf (last visited Jan. 15, 2018) ................................................ 28, 38

Our History, CIR SEIU, http://www.cirseiu.org/our-history-2/ (last visited Jan. 18, 2017) ........................... 21

Owen Moritz, Shutdown: John Lindsay, Michael Quill, and the NYC transit strike of 1966, N.Y. Daily News, August 14, 2017 .......................................................... 21

Paul Adler, Time-and-Motion Regained, Harv. Bus. Rev., Jan.-Feb. 1993 ................... 10

PEI Launches QI Clinic, The CIR Policy & Educ. Initiative (Jan. 29, 2015), http://www. cirpei.org/pei-launches-qi-clinic.html .......... 30

Peter Lazes et al., How Labor Management Partnerships Improve Patient Care, Cost Control and Labor Relations (2012),


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available at http://digitalcommons.ilr. cornell.edu/cgi/viewcontent.cgi?article=1058&context=reports ............. 18, 30

Peter Lazes & Tony Costanza, Xerox Cuts Costs Without Layoffs Through Union-Management Cooperation (1984), available at http://digitalcommons.ilr. cornell.edu/cgi/viewcontent.cgi?article=1057&context=briefs ............... 10

Richard B. Freeman & James L. Medoff, What Do Unions Do? (1984) .................... passim

Robert H. Platt, Comparison of Impasse Procedures: The New York City Collective Bargaining Law and the New York State Taylor Law, 9 Fordham Urb. L.J. 1039 (1981) ............................................. 21

Sally Klingel & David B. Lipsky, Joint Labor-Management Training Programs for Healthcare Worker Advancement and Retention (2010), available at http://digitalcommons.ilr.cornell.edu/cgi/ viewcontent.cgi?article=1042&context= reports ......................................................... 9, 10, 16

Selig Perlman, A History of Trade Unionism in the United States (1922) ..... 20

Sen. Robert F. Wagner, Company Unions: A Vast Industrial Issue, N.Y. Times, Mar. 11, 1934 .................................................. 17


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Sumner H. Slichter, The Changing Character of American Industrial Relations, Am. Econ. Rev., Supplement, Mar. 1939, reprinted in Potentials of the American Economy: Selected Essays of Sumner H. Slichter (John T. Dunlop ed., 1961) .............................................................. 26

The Dunlop Comm’n on the Future of Worker-Management Relations, Fact Finding Report (May 1994) .......................... 28, 31

The LA County Health Agency Introduces Just Culture, YouTube (Sept. 12, 2017), https://www.youtube.com/watch?v=7jc4TOSrJCU&t=27s .................... 37

Thomas A. Kochan et al., Healing Together (2009) .......................................................... passim

Thomas A. Kochan, The Kaiser Permanente Labor Management Partnership 2009-2013 (2013), available at http://mitsloan.mit.edu/uploadedFilesV9/Academic_Groups/Work_and_ Organization_Studies/Media/FINAL-KPreport130947.pdf ..................................... 17, 27

William N. Cooke, Employee-Participation Programs, Group-Based Incentives, and Company Performance: A Union- Nonunion Comparison, 47 Indus. & Lab. Rel. Rev. 594 (1994) ...................................... 14


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INTERESTS OF AMICI CURIAE

Los Angeles County’s Department of Health Ser-vices (“LA DHS”) is the second largest municipal health system in the country, serving approximately 600,000 patients every year. LA DHS relies on coop-erative work with its unionized employees to im-prove quality and efficiency, and its union partner-ships have already, among other things, succeeded in reducing patient wait times, increasing productivity, and increasing patient satisfaction. LA DHS joins this brief because it believes the fair share provisions in its collective bargaining agreements play an im-portant role in fostering productive labor relations, which benefit the health system, its patients, and its employees alike.1

NYC Health + Hospitals (“NYC H+H”) is the largest municipal healthcare system in the country, serving 1.2 million patients every year. Like many other pub-lic and private health systems, NYC Health + Hospi-tals uses labor-management partnership structures to improve care quality and efficiency. Through part-nership work, the healthcare system and its employ-ees have already, among other achievements, re-duced needle stick rates and reduced readmission rates for pediatric asthma patients. NYC Health + Hospitals joins this brief because it believes the fair share provisions in its collective bargaining agree-

1 No counsel for a party authored this brief in whole or in part, and no person or entity other than amici curiae and their counsel made a monetary contribution to the preparation or submission of this brief. The parties’ letters consenting to ami-ci briefs are on file with the Clerk.

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ments are important to the continued success of its labor-management cooperative work.

The Service Employees International Union (“SEIU”) is the largest healthcare union in the United States. More than half of SEIU’s two million mem-bers work in the healthcare industry. Like its co-ami-ci, SEIU believes fair share fees are important to its successful and mutually beneficial collective bar-gaining relationships.

INTRODUCTION AND SUMMARY OF ARGUMENT

The principal lesson of this Court’s public employee speech cases is that public employers have “wide dis-cretion” to manage their operations in order to achieve productivity and efficiency goals. Connick v. Myers, 461 U.S. 138, 151 (1983). Public employers operate well within that broad discretion when they borrow management systems validated in the private sector, see, e.g., Waters v. Churchill, 511 U.S. 661, 676 (1994), and individuals who choose to work for the govern-ment know that they, like private-sector employees, must accept certain restrictions on their freedom, Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).

One question all public and private employers face when exercising their managerial discretion is how best to structure labor relations. History reveals a wide variety of employer experiences in this area, ranging from catastrophic antagonism between man-agement and front-line staff to high performance workplaces that maximize employee contributions. Management experts familiar with this history de-scribe a labor relations continuum for both union

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and non-union environments, with adversarial labor-management relations at one end and high perfor-mance relationships at the other. Steps toward the high performance end of the continuum are associ-ated with productivity and efficiency gains as em-ployers benefit from lower turnover, increased work-force engagement, and employee contributions to process improvements.

Data gathered over many years from employers at all points along the continuum demonstrate, inter alia, that collective bargaining if managed well can contribute to positive labor relations and help em-ployers achieve their goals. Disruption and acrimo-ny can be avoided, and mature collective bargaining relationships can promote quality, efficiency, and productivity. Many healthcare employers in particu-lar have benefitted from partnerships with their em-ployees’ unions, and workplaces with collective bar-gaining have been shown in some circumstances to outperform their non-union counterparts.

Given that significant evidence shows unionized environments can be productive, it is completely ra-tional for public employers (especially those operat-ing in markets where unions are well-established and popular) to implement best practices for making col-lective bargaining successful, and allowing unions to collect fair share fees is one policy that has been shown over many years to encourage productive col-lective bargaining. Fair share fees ensure that em-ployee unions are sufficiently secure in their position to focus on the workforce’s long-term interests, in-cluding by cooperating with management on initia-tives for mutual benefit, rather than on maintaining a

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contentious campaign atmosphere to encourage membership and secure financial stability. Fair share fees also provide adequate resources so that employ-ee unions can be effective, and that effectiveness in turn gives them enough credibility with the work-force to “vouch for” employer systems and initia-tives. Fair share fees reduce resentment among co-workers as well, allowing employers to reap benefits from multi-disciplinary teamwork and workforce co-hesion.

The fee-supported collective bargaining relation-ships between SEIU and LA DHS and NYC H+H show how this can work. Following a labor relations mod-el developed in the private sector, LA DHS has con-sciously sought to partner with its employees’ unions and to use their strength to support system-wide im-provements. Unions like SEIU Local 721 contribute resources and staff time to quality improvement pro-grams conducted with management, and vouch for those programs with front-line workers, encouraging them to participate wholeheartedly in employer-initi-ated projects. In New York the same process is un-der way, with public hospitals and SEIU unions en-gaged in a variety of cooperative projects aimed at improving patient care quality.

These labor-management cooperative efforts have produced meaningful, measurable benefits for pa-tients, and amici believe their cooperative work thrives in significant part because it involves effec-tive, well-resourced unions incentivized to focus on long-term interests rather than short-term campaign-ing. Amici urge the Court to affirm the Seventh Cir-cuit’s decision so that their successful collective bar-

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gaining relationships can continue to improve productivity, efficiency, and patient care.

ARGUMENT

I. Public Employers in Pro-Union Environments Must Have Discretion to Adopt Policies That Make Collective Bargaining Productive.

A. Public Employers Have Significant Discretion under the First Amendment to Manage Their Employees’ Speech.

The guiding principle embodied in this Court’s public employee speech cases is that the government as employer has “wide discretion” with respect to personnel management, Connick, 461 U.S. at 151, in-cluding discretion to implement best practices fol-lowing private-sector models, see, e.g., Waters, 511 U.S. at 676. Individuals who choose to enter into government service buy into this bargain, knowing they must “accept certain limitations on [their] free-dom.” Garcetti, 547 U.S. at 418; see also Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507, 519 (1991); Abood v. Detroit Bd. of Educ., 431 U.S. 209, 236 (1977). Pe-titioner, for example, opted into his position in a state where fair share fees had already been the public-sector norm for more than twenty years. See Movant Employees’ Br. in Support of Mot. to Intervene Ex. B ¶2, Rauner v. AFSCME Council 31, No. 15-1235 (N.D. Ill. Mar. 23, 2015), ECF No. 92-5; 5 Ill. Comp. Stat. 315/6(e) (1983).

The decisional framework familiar from Connick and similar cases reflects the distinction between government acting as employer vis-à-vis its employ-

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ees and government acting as sovereign vis-à-vis its citizenry, and recognizes the importance of public employer discretion in the former context. Public employees have no protected speech interests un-less they speak as citizens on matters of public con-cern, and, even when they do, their First Amendment interests must be balanced against competing em-ployer considerations. See, e.g., Connick, 461 U.S. at 150. For purposes of this balancing, public employ-ers’ assessments of their own managerial interests are entitled to “[d]eference” if “reasonable.” Bd. of Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 678 (1996).

To date, this Court has recognized as reasonable a number of employer interests relevant to fair share fees, including interests in promoting effectiveness and efficiency, see, e.g., Connick, 461 U.S. at 150, en-suring “harmony among co-workers,” and fostering “personal loyalty and confidence” in the workplace, Rankin v. McPherson, 483 U.S. 378, 388 (1987). The Abood Court invoked several of these interests when it balanced employees’ rights against employers’ pre-rogative with respect to fees. 431 U.S. at 220–21, 222–25. Illinois also cited several when it enacted its labor relations law, see 5 Ill. Comp. Stat. 315/2 (1983), and certainly nothing in this case’s effectively non-existent record has proved the state’s assessment of its interests to be unreasonable or outside its broad discretion.

Petitioner and his amici contend that these princi-ples may be ignored after Harris v. Quinn, 134 S. Ct. 2618 (2014), but Harris does not stand for that radi-cal proposition. In Harris, this Court declined to ex-tend the public employee speech doctrine to cover

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“personal assistants” as to whom “the State [was] not acting in a traditional employer role.” Id. at 2642. Here, by contrast, Illinois is indisputably acting as employer, which means this case implicates the state’s authority over its own workplaces and full-fledged employees. Harris’s conclusion that the per-sonal assistants would have prevailed under a public employee speech analysis also rested on features unique to the in-home care system, in which the state largely refrained from exercising day-to-day control over assistants working in private homes at individu-al employers’ direction. See id. at 2640–41. Given the state’s limited exercise of authority and the as-sistants’ supervision by individual non-state employ-ers, the Court had no cause to consider the ways that fair share fee systems facilitate productive collective bargaining relationships in ordinary public-sector workplaces—relationships both important to effec-tive public administration and difficult to maintain with insecure collective bargaining agents. Thus, Harris is not controlling.

B. Unions Can Help Employers Improve Productivity, Efficiency, and Quality.

Petitioner and his amici would have the Court be-lieve that for employers interested in exercising their wide discretion to achieve positive labor rela-tions, the only good union is a weak or non-existent one. See Pet. Br. 60–61. But that opinion rests on ideology, not fact. In reality, decades of empirical research shows that well-managed collective bar-gaining relationships can improve labor relations and help employers achieve productivity and effi-ciency goals.

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1. Many employers invest in improved labor relations to achieve productivity and efficiency gains.

Management experts often describe labor relations as falling along a continuum, with adversarial employ-er-employee relations at one end and sustained coop-eration between labor and management at the other. See, e.g., Nat’l Acads. of Sci., Eng’g & Med., Transit Coop. Research Program, 2 Labor-Management Partnerships for Public Transportation A-5 (2015), available at https://www.nap.edu/catalog/23431/labor-management-partnerships-for-public-transportation-volume-2-final-report. The outcomes associated with different stages along the continuum and the work-place practices that tend to improve labor relations have been the subject of extensive study since at least the early 20th century. See Herman Aguinis et al., Using Organizational Science Research to Address U.S. Federal Agencies’ Management & Labor Needs, 2 Behav. Sci. & Pol’y 66, 68 (2016) (“Research in this field, conducted over the past 100 years, has involved millions of people across industries and occupations, resulted in studies published in hundreds of scientific journals and yielded a mother lode of empirical evi-dence that is now widely accepted.”). As that evidence reflects, many public and private employers have found that investing in improved labor relations makes sense because, in their industries or regions, the pro-ductivity and efficiency gains that result from positive steps along the labor relations continuum outweigh any associated costs.

At one end of the continuum are antagonistic envi-ronments, which can be union or non-union and

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which tend to be characterized by distrust, emphasis on rule enforcement, conflict among front-line work-ers, and conflict between workers and management. Morale and employee engagement tend to be low and employees unwilling to invest in firm-specific skills. Employees in such environments also tend to believe that any ideas they have for improvement will either be ignored or lead to retaliation. See Thomas A. Kochan et al., Healing Together 8, 48 (2009); Dianne S. Schwager, Foreword to Nat’l Acads. of Sci., Eng’g & Med., supra.

Many workplaces fall somewhere in the middle of the continuum, with labor relations characterized neither by deep-seated suspicion nor by a feeling among staff and management that they are consis-tently working together to achieve common goals. See Kochan et al., supra, at 48. These in-between environments often see episodic periods of labor-management cooperation, with typical joint proj-ects including training programs and efforts to re-spond to urgent crises. See id. at 65; Daniel Marschall & Ellen Scully-Russ, Joint Union-Man-agement Workforce Development Model, in Trans-forming the U.S. Workforce Development System 206, 215 (David Feingold et al. eds., 2010); Nat’l Acads. of Sci., Eng’g & Med., supra, at A-1. Employ-ers able to move to the middle of the labor relations continuum can achieve significant gains through these projects, which tend to, inter alia, improve employee morale and retention and, by opening up lines of communication between labor and manage-ment, enable the development of innovative pro-cess improvements. See, e.g., Sally Klingel & David B. Lipsky, Joint Labor-Management Training Pro-

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grams for Healthcare Worker Advancement and Re-tention (2010), available at http://digital commons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1042& context=reports.2

Some employers who experience gains with joint projects are able to institutionalize labor-manage-ment cooperation and achieve “high performance” work environments. Jody Hoffer Gittell, High Per-formance Healthcare: Using the Power of Rela-tionships to Achieve Quality, Efficiency and Re-silience 49 (2009) [hereinafter Gittell, Healthcare]. In high performance environments, labor-manage-ment com munication is a permanent feature of the workplace and discussions extend to employers’ core operations. See, e.g., Kochan et al., supra, at 55; Marschall & Scully-Russ, supra, at 206. Labor and management “work together, not in total har-mony or under naïve notions that conflicts [will] magically disappear, but by surfacing and address-ing issues, challenges, and conflicts as they arise . . . .” Kochan et al., supra, at 7. Management also uses the communicative structures in such envi-ronments to convey priorities and educate employ-

2 See also Dorothea De Schweinitz, Labor and Management in a Common Enterprise 47–48 (1949) (describing process improvements developed by labor-management committees during World War II); Paul Adler, Time-and-Motion Regained, Harv. Bus. Rev., Jan.-Feb. 1993, at 3; Peter Lazes & Tony Costanza, Xerox Cuts Costs Without Layoffs Through Union-Management Cooperation (1984), available at http://digital commons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1057& context=briefs (with Adler, describing efficiencies achieved by labor-management projects prompted by foreign competition in the 1970s and 1980s).

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ees about aspects of the enterprise beyond their specific roles, enabling better coordination across job categories. See, e.g., Jody Hoffer Gittell, The Southwest Airlines Way: Using the Power of Rela-tionships to Achieve High Performance 32 (2003) [hereinafter Gittell, Southwest].

Research shows that employers who succeed in taking positive steps along the labor relations con-tinuum—whether to the middle or all the way to “high performance”—experience benefits “across a broad range of outcomes,” including improved quality, workforce productivity, and financial per-formance. Gittell, Healthcare, supra, at 49–50 & n.66 (citing studies); see also, e.g., Aguinis et al., supra, at 68–70. As an initial matter, such employ-ers avoid or minimize the costs imposed by adver-sarial labor relations, which include “animosity” and “poor communication,” Schwager, supra, as well as “burnout, litigation, lost work hours, [and] employee turnover,” Lucian Leape Inst., Through the Eyes of the Workforce: Creating Joy, Meaning, and Safer Healthcare ES1–ES2 (2013). Front-line employees’ sense of having a “voice” on the job also works to improve morale and engagement, which “results in better job performance.” Aguinis et al., supra, at 68; see also Ariel C. Avgar et al., Labor-Management Partnership and Employee Voice: Evidence from the Healthcare Setting, 55 In-dus. Rel. 576, 580 (2016). Increased communica-tion between management and front-line staff can also encourage workers to provide information about day-to-day operations that they would other-wise have no forum in which to share. See Kochan et al., supra, at 53.

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2. Unions can help employers improve labor relations and achieve productivity and efficiency gains.

Research shows that unionized environments, like non-union ones, can move positively along the labor relations continuum and that unionization can actually help employers improve labor relations and maximize resulting gains—if employers imple-ment policies to make collective bargaining produc-tive. This research demonstrating that collective bargaining can generate employer benefits confirms the views held by the original drafters of our labor laws, who talked of “labor peace” not only as the avoidance of strikes but also as productive, coop-erative engagement between labor and manage-ment.

As Harvard economists Richard Freeman and James Medoff have explained, the fact of unioniza-tion (or non-unionization) alone does not determine whether an employer has antagonistic or produc-tive labor relations. See Richard B. Freeman & James L. Medoff, What Do Unions Do? 12 (1984). What matters more are the “policies and actions” implemented by management in response to their employees’ choices. Id.; see also id. at 164–65. If management deploys strategies aimed at making engagements with its collective-bargaining partner productive, then management can use collective bargaining “to learn about and improve the opera-tion of the workplace.” Id. at 12. Unionism can in this way and others be “a significant plus,” enabling employers to maximize gains from improved labor relations and exceed outcomes achieved in non-

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union workplaces that try to implement similar practices. Id.

Kaiser Permanente provides a good example of employer choices that have made unionization pro-ductive. In the late 1980s and early 1990s, Kaiser ex-perienced a financial crisis and responded initially with layoffs and by insisting on union concessions. See Kochan et al., supra, at 34. When those mea-sures did not sufficiently reduce costs, and instead resulted in a “demoralized workforce” and declining standards of care, id. at 34–35, the company and its employees’ unions made a “pragmatic judgment that [they] would have more to lose . . . by going further down the path of escalating conflict.” Id. at 38. They developed a new partnership approach that is now institutionalized at the highest levels of company and union leadership, see, e.g., id. at 48, and on the front lines in joint labor-management “unit-based teams” (UBTs), which meet regularly to identify specific im-provement goals and develop projects to achieve them. See Labor-Management Partnership Fact Sheet, https://www.lmpartnership.org/sites/default/files/lmp_factsheet_6-17.pdf (last visited Jan. 10, 2018). Twenty years after the partnership was formed, Kaiser credits it with long-term improve-ments in clinical and business outcomes. See id. (cit-ing UBT achievements including 60% fewer patient falls with injuries, 13% improvement in patients’ overall satisfaction, etc.).

Numerous studies show that other unionized workplaces can, like Kaiser, achieve productive la-bor relations and performance outcomes that ex-ceed those at non-union firms. One study of 841

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manufacturers, for example, found that unionized firms with employee participation programs mea-sured 34.8% more performance improvement than non-union firms using similar programs. William N. Cooke, Employee-Participation Programs, Group-Based Incentives, and Company Performance: A Union-Nonunion Comparison, 47 Indus. & Lab. Rel. Rev. 594 (1994). The study’s author concluded that “unionized firms, on average, provide a much better environment for tapping the benefits of em-ployee participation programs than do nonunion firms.” Id. at 607; see also Maryellen R. Kelley & Bennett Harrison, Unions, Technology, and Labor-Management Cooperation, in Unions and Econom-ic Competitiveness 267 (Lawrence Mishel & Paula B. Voos eds., 1992) (finding that non-union plants utilizing employee participation programs had 33.1% longer production time per unit than union firms with similar programs).

Evidence of collective bargaining’s potential ben-efits is particularly strong in healthcare, where main-taining employee morale, enhancing skills, and re-ducing employee turnover may be of life and death importance. Studies have found higher productivity and higher wages in union versus non-union hospi-tals, with productivity gains more than offsetting higher pay. Michael Ash & Jean Ann Seago, The Ef-fect of Registered Nurses’ Unions on Heart-Attack Mortality, 57 Indus. & Lab. Relations Rev. 422, 424 (2004). Hospitals with nurse unions have lower turnover, and there is also a highly statistically sig-nificant association between the “presence of an R.N. union and lower risk-adjusted heart-attack mortality.” Id. at 432.

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A recent study in California found that hospitals with successful unionization elections significantly outperformed hospitals where the union lost with respect to the incidence of hospital-acquired illness-es, with particularly large impacts on “central ner-vous system complications . . . [and] metabolic de-rangement.” Arindrajit Dube et al., Nurse Unions & Patient Outcomes, 69 ILR Rev. 803, 830 (2016). Con-trolling for other factors, unionizing hospitals also performed better relative to a broad sample of con-trol hospitals (i.e., not just those with recent union elections), and the benefits of unionization grew over time. Id. at 812, 820. The study’s authors found these data “likely to represent a causal effect of unionization on the quality of care” rather than a causal effect of changes in reporting or other fac-tors. Id. at 830.

Researchers believe that collective bargaining works in several ways to generate these benefits. Most immediately, unionization often improves wages and morale and lowers turnover and training costs. See Freeman & Medoff, supra, at 46–47, 95. Unions provide protection against retaliatory job loss as well, which encourages frank employee participation in quality improvement programs. Adrienne E. Eaton & Paula B. Voos, Unions and Contemporary Innova-tions in Work Organization, Compensation, and Employee Participation, in Mishel & Voos, supra, at 173, 193–94. Employees feel free to point out “im-provements that perhaps should have been obvious to management but were not, and that, once discov-ered can be installed with a net gain to the company as well as the workers.” Freeman & Medoff, supra, at 15 (internal quotation marks omitted). In the absence

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of union protection, this “expression of [employee] voice” often feels too “risky” for front-line staff who “fear the employer may fire them” if they make sug-gestions that anger supervisors, id. at 9, or they may “work[] their way out of a job” by identifying opportu-nities for productivity improvements, Kochan et al., supra, at 53.

Employee participation programs also have “great-er legitimacy in the eyes of workers” when indepen-dent collective-bargaining representatives are in-volved. Eaton & Voos, supra, at 193. Management leaders at Swedish Hospital in Seattle, for example, described labor participation in a joint program as an advantage because the union’s involvement “create[d] a sense of trust and support” among the workforce, making employees less likely to question the em-ployer’s motives. Klingel & Lipsky, supra, at 50; id. at 4 (explaining that union involvement “eases work-ers’ fears” and reassures them that “skill and aptitude assessments, counseling, and test scores will not put their jobs . . . at risk”). Furthermore, the presence of unions can have a “sunshine” effect on lower-level supervisors, shining a light on counter-productive management practices that higher-ranking officials might not otherwise discover. See Freeman & Medoff, supra, at 15, 174.

Finally, economists point out that many important aspects of the industrial setting (e.g., safety condi-tions, employee benefits) are “public goods,” i.e., goods that will affect the well-being of every employ-ee, and that competitive markets do not produce enough of such goods “without some form of collec-tive decision-making,” such as that provided by

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unionization and collective bargaining. Id. at 8, 9. Many managers credit their employees’ unions with the initial idea to consider cooperative strategies as well. See, e.g., Thomas A. Kochan, The Kaiser Per-manente Labor Management Partnership 2009-2013, at 8 (2013) [hereinafter Kochan, Kaiser 2009-2013], available at http://mitsloan.mit.edu/uploadedFilesV9/Academic_Groups /Work_and_Organization_Studies/Media/FINAL-KPreport 130947.pdf (quoting management interviewee about partnership: “Perhaps we could have done this without unions but for fifty years we didn’t. The union leadership brought sharper focus to this as a way of doing work.”).

These positive results of collective bargaining would come as no surprise to the original drafters of our labor laws, who articulated a broad concept of labor peace in which collective bargaining not only avoids strikes but also leads to meaningful coopera-tion between labor and management. Senator Rob-ert Wagner, the sponsor and champion of the Na-tional Labor Relations Act, held a “profoundly . . . cooperationist” view of collective bargaining, Mark Barenberg, The Political Economy of the Wagner Act: Power, Symbol, and Workplace Cooperation, 106 Harv. L. Rev. 1379, 1427 (1993), and believed it could enable “the highest degree of cooperation” be-tween labor and management, Sen. Robert F. Wag-ner, Company Unions: A Vast Industrial Issue, N.Y. Times, Mar. 11, 1934. Others shared his view, describing “cooperation between . . . management and the contracting union” as “the mature fruit of collective bargaining” capable of producing “savings in costs, economies in operations and enlargement

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of markets.” Nat’l Bur. of Econ. Affairs, Inc., Collec-tive Bargaining Contracts 547–58 (1941).

Employers across industries have for years invest-ed significant resources in partnership programs with their employees’ unions, similarly believing that collective bargaining can be channeled into a pro-ductive force. See, e.g., Peter Lazes et al., How Labor Management Partnerships Improve Patient Care, Cost Control and Labor Relations (2012), available at http://digitalcommons.ilr.cornell.edu/cgi/view content.cgi?article=1058&context=reports (describ-ing labor-management cooperative programs). Be-fore “company unions” were pro hibited, some em-ployers even went so far as to create labor organizations where none existed, and where no union organizing drives were feared, in an effort to improve morale and cooperation. See Daniel Nel-son, The Company Union Movement 1900-1937: A Reexamination, 56 Bus. Hist. Rev. 335 (1982) (dis-cussing, inter alia, the Filene Cooperative Associa-tion formed by a Boston department store in 1898 to improve workforce morale, even though “there was no union and no threat of one”); see also Alexander H. Heron, Collective Bargaining in Action in Col-lective Bargaining Contracts 21 (1941).

As these employers understood, moving from ad-versarial toward cooperative labor relations can im-prove morale, efficiency, and productivity, and while unionization may neither be necessary to achieve those gains nor always produce them, unionization is certainly compatible with cooperative labor rela-tions and has in some cases generated better results than found in non-union environments.

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C. Many Public Employers Operate in Pro-Union Environments Where Strategies Aimed at Channeling Collective-Bargaining Institutions into Productive Relationships Make Sense.

In some states, especially those with little union history, public employers may decide that their best strategy for achieving productivity gains like those described in the previous sections is to try to remain union free. But in other jurisdictions, especially those where support for unionization runs deep, many public employers have seen that policies aimed at weakening their employees’ unions can carry high costs and have instead reasonably sought to achieve gains by implementing policies aimed at making col-lective bargaining productive.

South Carolina provides a good example of a state with little union history where public employers may be inclined toward strategies intended to avoid unionization. South Carolina has had a “right to work” law on the books for more than sixty years, and public employees have no right to engage in col-lective bargaining. See Branch v. City of Myrtle Beach, 532 S.E.2d 289 (2000). The state’s union-in-hospitable legal regime and cultural opposition to unions have consistently kept union density very low. See Bureau of Labor Statistics, Union Affiliation of Employed Wage and Salary Workers by State, https://www.bls.gov/news.release/union2.t05.htm [hereinafter BLS Union Affiliation Table].

In many other states, however, the situation is very different. New York’s labor history, for example, dates back at least to 1794 when printers formed the

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state’s first documented union, followed soon after by others. Selig Perlman, A History of Trade Union-ism in the United States 4–7 (1922); see also id. at 19–20 (by 1836 there were fifty-two unions reported in New York, including a female union association). Public employees were part of the state’s labor move-ment early on: A national union federation formed in New York in 1834 made “secur[ing] the ten-hour day for government employees” an early goal, id. at 26, and in 1836, mechanics employed in the New York and Brooklyn Navy Yards campaigned successfully for a ten-hour day implemented by President Jack-son, id. at 26–27.

Today, nearly two centuries later, New York has among the highest union density rates in the nation, with more than one-quarter of workers represented by unions. BLS Union Affiliation Table, supra. Oth-er states with similar cultures and histories also have high unionization rates, see id., and recent sur-veys show that unions are becoming more popular, not less, see Jeff Jones & Lydia Saad, Gallup Poll Social Series: Work & Educ. (Aug. 2–6, 2017), http://news.gallup.com/poll/217331/labor-union-approval-best-2003.aspx.

In states that have high union density rates over-all, certain industries tend to be more unionized than others. In recent years, for example, nurses have organized at higher rates than employees in other industries. See Kochan et al., supra, at 12. In the San Francisco Bay Area, union density in hospi-tals was estimated in 2004 to be between 65% and 95%. Ash & Seago, supra, at 439. There is also a long union history in healthcare: A union was first

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recognized by Los Angeles public hospitals in 1969, and interns and residents organized in New York public hospitals in 1957, Our History, CIR SEIU (Dec. 22, 2017), http://www.cirseiu.org/our-history-2/. In areas and industries like these with strong union traditions, employers that do not offer union bene-fits can find it difficult to compete for staff—a par-ticular concern in healthcare where persistent workforce shortages make attracting well-trained employees and reducing turnover key employer priorities.

When deciding on labor relations policies, public employers in states with strong pro-union cultures must also weigh the fact that past efforts to weaken unions have been costly. New York, for example, saw a wave of strikes in the years after World War II as public employees sought recognition and collec-tive bargaining rights. State and city officials re-sponded first with a hardline anti-union position, see Robert H. Platt, Comparison of Impasse Procedures: The New York City Collective Bargaining Law and the New York State Taylor Law, 9 Fordham Urb. L.J. 1039, 1041 (1981), but that approach only worsened the problem, which continued for years until culmi-nating in a transit workers’ strike, see Owen Moritz, Shutdown: John Lindsay, Michael Quill, and the NYC transit strike of 1966, N.Y. Daily News (Aug. 14, 2017). That strike, and others of the era, prompt-ed New York to pass the Taylor Act, which extended bargaining rights to public employees, authorized fair share fees, and inaugurated a new era of labor peace. See Br. of New York City Mun. Labor Comm. at 11, Friedrichs v. Cal. Teachers Ass’n, 578 U.S. __ (No. 14-915) (2016); see also Br. for the States of New

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York et al. at 14–20 & nn. 7–10, Friedrichs, supra (citing examples from other states).

Public employers in these pro-union environments face a “razor-edge choice,” Kochan et al., supra, at 235: risk disruption and a “foundation of low trust” by adopting policies aimed at weakening their em-ployees’ chosen representatives, or adopt policies aimed at channeling employees’ preferences for col-lective bargaining into stable, productive, and coop-erative labor-management relationships, id.

* * * * *In sum, different public employers face very differ-

ent labor relations environments that lead them to make different policy choices. For employers oper-ating in states and industries where unions are well-established, efforts to de-stabilize popular unions may carry significant costs. At the same time, a raft of data gathered over many years shows that collec-tive bargaining relationships if managed well can produce significant gains. Given these risks and po-tential benefits, it is completely rational and well within their “wide discretion,” Connick, 461 U.S. at 151, for public employers operating in pro-union en-vironments to adopt policies aimed at making collec-tive bargaining productive.

II. Many Reasonable Public Employers Have Followed Private-Sector Models by Seeking to Partner with Their Employees’ Unions, and Fair Share Fees Are Critical to the Success of Their Partnerships.

For public employers operating in pro-union envi-ronments, productive collective bargaining relation-

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ships are possible but by no means inevitable. They require trust, time, and resources, and a workforce convinced that partnership is in its interest. Fair share fees help employers achieve each of these con-ditions and, as a result, make productive collective bargaining much more likely. Simply put, “secure” unions supported by fair share fees are much better able to “cooperate with management and play a con-structive role in the operation of [an] enterprise” than weak unions struggling to survive and incentiv-ized to emphasize conflict with management. Lloyd G. Reynolds, Labor Economics and Labor Relations 444 (8th ed. 1982).

A. Fair Share Fees Foster Trust Between Labor and Management and Among Co-Workers.

Productive labor relations depend on “the ability of labor and management to reconfigure their rela-tionship from adversarial to collaborative.” Avgar et al., supra, at 582; see also Eileen Appelbaum & Larry W. Hunter, Union Participation in Strategic Deci-sions of Corporations, in Emerging Labor Market Institutions for the Twenty-First Century 288 (Rich-ard B. Freeman et al. eds., 2004) (“the less coopera-tive the relationship between labor and manage-ment,” the less likely the parties will “be able to discover or realize joint gains”). That reconfigura-tion, in turn, requires trust and a significant “leap of faith”—faith that each side can be trusted to do what it promises, and faith that each side is looking to achieve mutual gains, not to undermine the other in the guise of partnership. Avgar et al., supra, at 587. Labor and management representatives who have

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made that leap emphasize the importance of an “hon-est and frank relationship, built up over time” and of operating “on the basis of mutual respect and never on blindsiding or diminishing the other party.” Nat’l Acads. of Sci., Eng’g & Med., supra, at G-9, G-10.

Of course, achieving an “honest and frank” rela-tionship can be easier said than done. “Labor rela-tions have typically been adversarial in the United States,” id. at A-1, and “hostilities and distrust built up over the years” can be difficult to set aside, Ko-chan et al., supra, at 71. One union member at Kai-ser, for example, described himself as “suspicious” of cooperation with management because there had “been a lot of doublespeak from Kaiser” over the years and partnership could be “more of the same.” Id. at 39–40. A management representative who eventually became a partnership supporter was simi-larly suspicious to start because “before this experi-ence [he] only associated unions with people on picket lines,” not with anything productive. Id. at 57.

Overcoming these attitudes is likely to be difficult for any employer and union interested in coopera-tion, but overcoming them becomes nearly impossi-ble when a union is weak and insecure. A union con-stantly struggling to survive has a strong incentive to encourage “antagonism [against] the employer,” not to become the employer’s partner. Reynolds, supra, at 444. The union must prove its value to members and prospective members by emphasizing differenc-es with management, making demands, and pursuing grievances. See Neil W. Chamberlain & Donald E. Cullen, The Labor Sector 173 (2d ed. 1971). Only when the “union’s existence is secure can it afford to

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cooperate with management and play a constructive role.” Reynolds, supra, at 444–45.

Right-to-work environments tend to create inse-cure unions. Union members see that non-member co-workers can access all the benefits offered by the union for free. See, e.g., Mancur Olson, The Logic of Collective Action 85–88 (1965). This applies a strong downward pressure on membership that only accel-erates over time, as each employee who rescinds his or her membership increases the dues burden on those who remain. See id. at 35. Because of this classic free-rider problem, union membership in right-to-work environments often ends up well be-low even what the employees themselves want, id. at 36, 76–91, leaving unions that are actually sup-ported by a majority of workers financially unstable. And financially unstable unions must campaign con-stantly for new members, devoting much of their en-ergy to “keeping [their] fences mended against em-ployer attack” and filing “enough grievances to keep the workers convinced that the . . . union is essential for their protection.” Reynolds, supra, at 444; see also Email from Alyssa Cundari Roelans, Fl. Area Dir., Comm. of Interns & Residents (Nov. 30, 2017) [hereinafter Roelans Email] (on file with authors) (“Being in a RTW state is really like working on a new organizing campaign”).

Fair share fees help solve this problem by provid-ing unions with a sense of security. Eliminating “the issue of union status” by ensuring that the union can collect from those who receive its services re-duces any incentive to emphasize conflict with man-agement and allows union leaders to move from

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campaigning toward a productive relationship. Sumner H. Slichter, The Changing Character of American Industrial Relations, Am. Econ. Rev., Supplement, Mar. 1939, reprinted in Potentials of the American Economy: Selected Essays of Sum-ner H. Slichter 217 (John T. Dunlop ed., 1961). “[I]nstitutional security” for both management and labor provides the “foundation to build a more ef-fective, consistent, and long-range mode of doing business on both sides.” Nat’l Acads. of Sci., Eng’g & Med., supra, at 21; see also id. at A-5 (“weak and fragmented” unions offer “more disadvantages” than advantages for management); Kochan et al., supra, at 17 (labor-management partnerships tend to develop where unions are “strong”); Reynolds, supra, at 444 (once union is secure, “time of union officials” can “be put to constructive use in ironing out personnel problems . . . and cooperating with management in other ways”).

Fair share fees also help solve a second problem that plagues insecure unions and interferes with la-bor-management cooperation: conflict among co-workers. The workforce-participation programs at the heart of most labor-management cooperation de-pend not only on the ability of labor and management to work together but also (as is true of many other productivity-enhancing practices) on the ability of employees to work as a team. See, e.g., Leape Inst., supra, at 15 (describing “[m]ultidisciplinary team-work” as essential for quality improvement in health-care); Gittell, Healthcare, supra, at 1–56 (document-ing quality and efficiency performance outcomes associated with relational coordination among co-workers). When unions cannot collect fees for their

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services, however, “ill feeling” tends to develop with-in the workforce as employees who pay union dues grow to resent those who benefit from the union’s work but refuse to contribute financially. See Reyn-olds, supra, at 444; cf. Olson, supra, at 70–71. These natural and “powerful” reactions drive those who pay to “punish[] free riders,” Ernst Fehr & Simon Gächter, Cooperation and Punishment in Public Goods Experiments, 90 Am. Econ. Rev. 980, 980 (2000)—a dynamic that makes effective teamwork nearly impossible. Fair share fee policies avoid these reactions by ensuring that all employees who benefit from the union’s services pay their part.

B. Fair Share Fees Provide the Time and Resources Needed for Productive Cooperation between Labor and Management.

Fair share fees are important to productive collec-tive bargaining for the additional reason that they give unions the time and resources they need to fo-cus on the workforce’s long-term interests in mutu-ally beneficial relationships with management.

Management experts who have studied labor-man-agement cooperation agree that positive movement along the labor relations continuum takes time. “Hos-tilities and distrust” built up over years do not disap-pear overnight. Kochan et al., supra, at 71. Both la-bor and management benefit from time to re-adjust their relationships, explore ideas, and develop trust. See Kochan, Kaiser 2009-2013, supra, at 8, 13, 24.

Partnership efforts also tend to expand and gener-ate more gains over time, after labor and manage-

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ment realize benefits from initial projects. See Marschall & Scully-Russ, supra, at 215 (explaining that “early joint programs” typically “respond to a specific event or problem” before expanding); Nicole Moore, LA DHS, The Care Improvement Teams Pro-gram Binder: How To Start a Partnership-Based Improvement Program 24–25 (Feb. 1, 2016) (advis-ing leaders to “start small” and “consider expansion as team establishes success”), http://img.seiu.org/docs/HowToStart APartnership-Based Improvement Program.pdf; cf. The Dunlop Comm’n on the Future of Worker-Management Relations, Fact Finding Re-port 46 (May 1994) (“[W]orkplace innovations that remain in place over an extended period of time . . . produce the most improvements in economic per-formance.”). In New York, for example, partner-ship developed gradually between SEIU’s Doctors Council and NYC H+H, and their cooperative work is still expanding today. Labor and management developed a new forum for partnership, Collabora-tion Councils, as recently as 2015. See NYC H+H & Doctors Council, Collaboration Councils Agree-ment, http://www.doctorscouncil.org/wp-content/uploads/2015/10/HHC-Doctors-Council-SEIU- Collaboration-Councils-Contract-Language.pdf (last visited Jan. 15, 2018).

Commitment of resources and staff time to part-nership work on a day-to-day basis is another impor-tant pre-condition for successful labor-management cooperation. Unions and executives must be seen as investing in partnership in order to overcome rank-and-file skepticism. See Kochan et al., supra, at 154, 193 (cooperative work must overcome com-mon “first inclination” that partnership is just “the

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latest ‘program of the month’”). For labor, this means re-allocating staff time to partnership activi-ties and, in many cases, hiring new staff or consul-tants dedicated solely to partnership work. See Ko-chan et al., supra, at 82, 138 (partnership coalition of Kaiser unions employed twenty staff members by 2005); Nat’l Acads. of Sci., Eng’g & Med., supra, at 15 (some labor and management representatives ex-perienced with partnership recommend hiring “a professional facilitator”). These staff are needed for education and training, among other things, as union members must often acquire “new skills . . . [in order to] engage with management” in a productive man-ner. Kochan et al., supra, at 138; see also Maimonides Med. Ctr. et al., Strategic Alliance Report 2007: Creating Competitive Advantage in a Changing Healthcare Environment Through Worker Partici-pation 4 (2007), http://www.ilr.cornell.edu/sites/ilr.cornell.edu/files/Maimonides%20Report.pdf (“It was recognized early on that . . . success would depend on participant training, leadership development, and staff support[.]”).

Fair share fees provide the stability and financial security that unions need to make these time and resource commitments—and to make them worth-while. Only when a union is stable and financially secure will its leaders have enough confidence in the future to invest in long-term projects and be will-ing to devote significant energy and “staff capacity” to “engaging in union-management partnership.” Roelans Email, supra; see also Reynolds, supra, at 444. Unions operating in right-to-work environ-ments do not have these luxuries and are instead “forced to focus their time and resources on activi-

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ties that are explicitly ‘union building.’” Lazes et al., supra, at iii.

The experience of SEIU’s Committee of Interns and Residents (“CIR”) illustrates this experience. CIR represents intern, resident, and fellow physicians in six states, including New York, which permits fair share fees, and Florida, which does not. The inability to collect fair share fees in Florida compels CIR’s staff members there to spend most of their time working to sign up new members. See Roelans Email, supra (because Florida is right-to-work state, “[o]ver half of my time is spent on new member recruitment,” which takes away from partnership work).

In New York, by contrast, the stability provided by fair share fees has allowed CIR to invest in labor-man-agement cooperative work with NYC H+H. In 2015, for example, NYC H+H and CIR launched Quality Im-provement Clinics, which identify areas for improve-ment and allow residents to develop and lead quality improvement projects. See PEI Launches QI Clinic, The CIR Policy & Educ. Initiative (Jan. 29, 2015), http://www.cirpei.org/pei-launches-qi-clinic.html. CIR sup-ports the program by, inter alia, employing a Quality Improvement (“QI”) Director and other QI staff. A similar initiative with private-sector New York em-ployers recently led to process changes related to post-discharge care that successfully reduced read-mission rates from 23% to 11%. See Ebenezer Oni MD MPH, A Resident Led Multidisciplinary Approach to Improve Continuity of Care and Readmission Rates: A Quality Improvement Project 13, 21 (June 9, 2017), http://www.cirseiu.org/wp-content/uploads/2017/12/TOC-slides_AAMC-Presentation_Chicago.pdf.

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C. Fair Share Fees Give Unions the Strength They Need To Vouch For Cooperative Work.

Finally, fair share fees are important to produc-tive collective bargaining because they create unions that are sufficiently resourced to build up credibility with the workforce and then “vouch for” the fairness of employer systems, including coop-erative projects.

Employees’ fears about engaging openly and hon-estly in quality improvement projects are a signifi-cant obstacle to successful labor-management coop-eration. Research shows that many employees are reluctant to participate because they fear that man-agement will not take their ideas seriously, will not follow through, will retaliate against them for ex-pressing concerns, or will otherwise use information they provide against them. See, e.g., The Dunlop Comm’n, supra, at 49; Avgar et al., supra, at 586 (co-operation often seen as “risky”). Unless these fears are assuaged, employees do not feel “safe” and “ef-fective” in alerting management to problems or voic-ing ideas for improvement. Avgar et al., supra, at 586; see also The Dunlop Comm’n, supra, at 49 (“Workers must trust management to use the fruits of worker participation to benefit employees as well as shareholders.”). Especially in healthcare, quality improvement depends on the creation of a “just cul-ture,” Am. Coll. of Healthcare Execs. & Lucien Leape Inst., Leading a Culture of Safety: A Blueprint for Success 21–24 (2017), in which front-line employees can speak up “without threat of negative repercus-sion,” Leape Inst., supra, at 15.

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One of employers’ few proven strategies for over-coming workforce skepticism is to partner with unions that are stable and well-respected enough to legitimate cooperation in the eyes of the workforce. If a union that employees see as an independent and effective advocate commits to labor-management partnership, the union’s commitment “vouches for” cooperation and reassures employees that partici-pating will be safe and effective. See, e.g., Avgar et al., supra, at 586. Put another way, employees’ unions must be “regarded as strong” so that manage-ment can “be confident union leaders [have] credibil-ity among union members” and can “effectively com-municate” about partnership with the rank and file. Nat’l Acads. of Sci., Eng’g & Med., supra, at 18.; see also Gittell, Southwest, supra, at 166–67 (“Union rep-resentation within an organization can give that or-ganization increased legitimacy with its employees, and thus serve as a key element of a system of coor-dination and control if employee representatives are respected. . . .”) (emphasis added, footnote omitted).

If a union or other employee representative is seen as weak, by contrast, a partnership with that repre-sentative is unlikely to have credibility with the workforce, which may significantly reduce its ability to generate meaningful benefits for the employer. In-deed, this is one of the principal reasons why many employer-sponsored “representation plans” have failed. See, e.g., Irving Bernstein, The Lean Years 163, 173 (1969) (describing plans that failed because worker representatives appeared “timid” or focused on “curry[ing] favor with management”); see also Git-tell, Southwest, supra, at 172–73 (describing how most Continental Airlines employees became dissat-

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isfied with management-created employee interest groups). Absent a “strong union,” front-line workers do not have the confidence “to voice . . . criticism” or take other risks that are critical to the success of co-operative efforts. Elbridge S. Puckett, Productivity Achievements—A Measure of Success, in The Scan-lon Plan: A Frontier in Labor-Management Coop-eration 114 (Frederick G. Lesieur ed., 1958).

For all these reasons, reasonable public employers seeking the benefits of productive collective bargain-ing may well conclude that a “secure” union, Reyn-olds, supra, at 444, is likely to be a better partner than a “weak or fragmented one,” Nat’l Acads. of Sci., Eng’g & Med., supra, at A-4—and that requiring fair share fees is, therefore, in their interests as employ-ers, especially in pro-union environments where al-ternative policies aimed at weakening unions are un-likely to succeed and could carry high costs.

III. Amici’s Cooperative Work Shows How Collective Bargaining Relationships Supported by Fair Share Fees Can Benefit Employers and Consumers.

NYC H+H and LA DHS are the two largest munici-pal healthcare systems in the country, with 1.6 mil-lion patients per year and tens of thousands of em-ployees. Both systems have successfully sought to leverage the strength of their fee-supported employ-ees’ unions by investing in cooperative labor rela-tions programs, which have generated significant productivity, efficiency, and quality gains.

Recent partnership efforts in Los Angeles were prompted by an urgent need to respond to greater

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competition under the Affordable Care Act. See, e.g., Mitch Katz MD, A Message from the Director, LMTC News 1, Nov. 21, 2017, available at http://img.seiu.org/docs/20171121-LMTCNews.pdf. The partnership “started small” when LA DHS and SEIU Local 721 worked together to educate housekeeping staff about being more efficient and using fewer toxic chemi-cals, a collaboration that increased LAC+USC Medi-cal Center’s score on the “cleanliness” measure of a leading patient-satisfaction survey from 49% to 86%. See Laura Chenven & Danielle Copeland, Front-Line Worker Engagement: Greening Health Care, Im-proving Worker and Patient Health, and Building Better Jobs, 23 New Solutions 327 (Jan. 2013), ab-stract available at http://www.ncbi.nlm.nih.gov/pubmed/23896075.

Following that initial success, LA DHS expanded its reliance on union-management collaborative work and formalized its partnership with its employ-ees’ unions in a Labor Management Transformation Council. The Council has spearheaded a range of joint initiatives from a project to provide services to residents affected by a hazardous materials release, to home visits for free blood lead screenings, to a recent contest for staff to design the logo and motto for the County’s new Health Agency. See Labor Man-agement Transformation Council Stronger Togeth-er!, LMTC News, supra, at 1–2, Nov. 21, 2017 [herein-after LMTC Stronger Together].

At the clinic level, LA DHS has consciously fol-lowed Kaiser’s private-sector model by implementing a system of joint, labor-management care improve-ment teams (“CITs”), starting with a few in 2011 and

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expanding the program to fifty CITs by 2016. Inter-view with Nicole Moore, Director, Care Improvement Teams, L.A. Cnty. Health Agency, in L.A., Cal. (Oct. 30, 2017). CITs meet on a weekly basis to plan and imple-ment quality improvement projects and have achieved measurable quality and efficiency gains. One gastro-enterology CIT developed a three-month program fo-cused on improving patient follow-up that reduced appointment “no shows” by 18%. See LMTC Stronger Together, supra. Others have increased productivity, reduced pediatric-patient wait times, and eliminated missed and unreturned calls at an eye clinic. See id.; Brian Yoshio Laing MD MPH et al., A Quasi-Experi-mental Evaluation of Performance Improvement Teams in the Safety-Net: A Labor-Management Part-nership Model for Engaging Frontline Staff, J. Pub. Health Mgmt. & Prac., table 3 (July-Aug. 2016), ab-stract available at https://www.ncbi.nlm.nih.gov/pubmed/26193049 (UCLA study of CITs); Improving Care, Lowering Costs, SEIU 6 (2015), https://action.seiu.org/page/-/HospitalQuality.pdf. Through part-nership, DHS has also been able to standardize emer-gency codes across all its facilities—after three top-down management efforts to do the same failed. See Katz, supra.

SEIU Local 721 gives the CIT program credibility with frontline staff, and the union has contributed to the program by dedicating staff time and financial re-sources and by conducting union-member surveys to surface quality improvement ideas and encourage employees to invest in collaborative work. See Laing et al., supra, at 2; Interview with Patricia Castillo, L.A. Cnty. Reg’l Health Dir., SEIU 721, in L.A., Cal. (Sept. 10, 2015). Union involvement has succeeded

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in inducing union members to alert management to improvement projects that the healthcare system would likely not develop on its own, as when CIR members recently proposed and received funding to purchase a laser system for patients with dark skin tones who suffer from certain dermatologic disor-ders. CIR members had noticed in day-to-day opera-tion that their prior machine did not work well on dark skin. The new laser system, among other things, more effectively removes gang tattoos for patients seeking to renounce their affiliation. Email from Ralph DeRosa, Gen. Counsel, CIR (Dec. 6, 2017) (on file with authors). Partnership has also improved employee morale and commitment, as demonstrated by the fact that the DHS facility with the most CITs recorded a 95% completion rate on a recent employ-ee-engagement survey, compared to only 45% for the system as a whole. Moore Interview, supra; cf. Laing et al., supra, at 3 (finding that CIT program increases “adaptive reserve,” defined as a clinic’s ability to make and sustain change).

Most recently, LA DHS and its employees’ unions have partnered on a new initiative to foster a “just culture” within the healthcare system, as recom-mended by the American College of Healthcare Ex-ecutives. Labor and management are working to-gether to train the entire workforce and, through their partnership structure, have achieved remark-able alignment on goals for the project. In one re-cent joint video prepared to educate staff, a manage-ment representative explained LA DHS’s goal as ensuring that “individuals feel free to have new ideas, to make mistakes, to not be fearful of retaliation.” The management representative was followed al-

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most immediately by a union member who similarly described the project as helping “us to get rid of problems before they become big ones” rather than just “sweeping problems under the rug.” See The LA County Health Agency Introduces Just Culture, YouTube (Sept. 12, 2017), https://www.youtube.com/watch?v=7jc4TOSrJCU&t=27s.

In New York, NYC H+H and its employees’ unions have developed similarly sophisticated labor-man-agement programs, including the Quality Improve-ment Clinics discussed above. Partnering with labor gives these quality improvement efforts workforce credibility and encourages frank employee participa-tion, as NYC H+H recognized and sought to benefit from in connection with a staff safety culture survey. A team of union and management representatives drafted the survey, which was used to evaluate resi-dents’ perceptions of safety culture, to identify ways to make patient-safety training more robust, and to “[a]lign labor and management goals on patient safe-ty.” Mei Kong RN et al., An Assessment of Housestaff Experience of Safety Culture: What the Residents Revealed, http://www.cirseiu.org/wp-content/uploads/ 2018/01/NPSF-poster-1024x680.jpg (last visited Jan. 15, 2018). Because the labor-management survey team understood that involving CIR would maximize participation, the team had the survey distributed by union members and staff and also enlisted union staff to publicize the survey and visit departments to collect completed survey forms. Id.

NYC H+H frequently partners with the physician members of SEIU’s Doctors Council as well. Because of NYC H+H and the Doctors Council’s shared belief

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that “input [from] frontline clinicians into decision-making is essential” and that “[h]igh clinician engage-ment” and “professional satisfaction” improve patient care, the health care system and the doctors’ union agreed in 2015 to form Collaboration Councils to con-duct quality improvement projects and identify need-ed educational programs. NYC H+H & Doctors Coun-cil, Collaboration Councils Agreement, supra, at 4–8. One recent Collaboration Council project focused on reducing patient wait times in radiology, thereby im-proving patient experience and worker morale. Union members gathered data about the department’s pro-cess for patient intake and about actual patient expe-riences. The team then implemented a new process that significantly improved the department’s wait-time scores on a patient-satisfaction survey. See Me-nachem Gold MD et al., Improving Patient Wait Time Satisfaction in Radiology, http://www.doctors council.org/wp-content/uploads/2018/01/FBCC- Radiology-Project.pdf (last visited Jan. 15, 2018).

All these cooperative projects, developed through stable collective bargaining relationships, depend on a collaborative environment, union resources, and union credibility with the workforce—conditions in-compatible with union insecurity. These projects have produced significant, measurable benefits for patients, and amici urge the Court to re-affirm Abood so that they may continue.

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CONCLUSION

The Seventh Circuit’s decision should be affirmed.

Respectfully submitted,

Mary c. WIckhaM County Counsel counTy oF los angeles oFFIce oF The counTy counsel 648 Kenneth Hahn Hall of Administration 500 W. Temple St. Los Angeles, CA 90012

nIcole g. Berner Counsel of Record servIce eMployees InTernaTIonal unIon 1800 Mass. Ave., N.W. Washington, D.C. 20036 (202) 730-7383 [email protected]

salvaTore J. russo Senior Vice President General Counsel nyc healTh + hospITals 125 Worth St. New York, NY 10013

danIel rosenThal JaMes & hoFFMan, p.c. 1130 Conn. Ave., N.W., Ste. 950 Washington, D.C. 20036

WalTer kaMIaT 7305 Alaska Ave., N.W. Washington, D.C. 20012

i t supreme court of the united states · mosaic - (301) 927-3800 - cheverly, md mary c. wickham cy...

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